NY's Paid Family Leave Program

If you do not have an employee handbook, you will be required to provide notice to employees of their rights and obligations, including how to file a Paid Family Leave claim. There will also be a posting requirement that will be issued by the State Labor Department, but this has not yet been finalized. In addition, to request Paid Family Leave, employees will generally be required to complete a Request for Paid Family Leave or PFL-1 form developed by the State, although alternative forms containing the same information are permissible. The Workers' Compensation Board, which is charged with the implementation and execution of the new law, will be issuing a form notification for employees and a model application and approval form for the leave, with instructions.

Coordinating with the FMLA

If you are covered by the federal FMLA, you may want to start working out how to integrate that coverage with the new paid family leave program. You will also need to determine how to implement it in conjunction with any other paid or unpaid leave policies you already have in place. In fact, employers may offer employees the option of charging all or part of the paid family leave to existing paid leave programs so that they can receive their full wages. If you do this, you can request reimbursement for the paid family leave benefit from your insurance carrier.

This leads to the question of how an employer is supposed to analyze what legal provisions govern a given situation with an employee: What are an employer's obligations once an employee identifies a need for leave, and what questions must be answered to determine the answer?

First, is the employee asking for leave as the result of a condition that they themselves are suffering? Or is it because they have a family member in need of care and attention? If the leave is for the employee's own condition, then Workers' Compensation, Disability, and possibly the FMLA will apply. If the leave is to care for a member of the employee's family, then the State Paid Family Leave and possibly the FMLA will apply. The exception to this is giving birth to a child, where the leave is both for the mother's condition following childbirth as well as to care for and bond with the newborn child, as discussed below.

Second, what is the incident that precipitated the need for leave? If it is an employee injury incurred on the job, the State Workers' Compensation Law applies. If it is an employee injury as the result of something that did not occur in the course of employment, then the state Disability Law applies in the first instance, followed by the FMLA and possibly the Americans with Disabilities Act. Please note that in New York City there is also paid leave required for an employee's own care, which has its own scope and requirements.

Third, is the employee eligible under each of the applicable laws? An employee is not eligible under FMLA until they have worked for you for at least 12 months and 1,250 hours during the preceding 12 months. State Paid Family Leave, however, kicks in after 26 weeks for a full-time employee and 175 days for a part-time employee. Whether the employee is covered by the federal FMLA or State leave or both, employees will not be able to utilize more than 12 work weeks of paid family leave in any consecutive 52 week period. Claim-related disputes involving State Paid Family Leave will be settled by arbitration.

Fourth, can leaves that overlap in cause and scope be taken concurrently? The short answer is yes. If they do not, it may end up that employees get more leave than they should be entitled to. There are several questions outstanding concerning how these overlapping purposes will play out with each other. The authorities are working through them. Please check for future developments.

Finally, does the leave involve the birth of a child to a birth mother who is your employee? If this is the case, then both disability and paid family leave apply consecutively. This means a woman will get disability for a certain number of weeks following delivery; she is then is entitled to the State Paid Family Leave for up to eight weeks to bond with that child. While birth mothers who qualify for disability may also take paid family leave, they cannot collect payments from both at the same time in the post-partum period. They can, however, take the two paid periods consecutively and then may qualify for FMLA time unpaid following those two time periods.

Conclusion

These issues are complex and the ways the differing legal requirements will play out in the context of the new State Paid Family Leave Law are still developing. There is a Paid Family Leave hotline where you can address your issues as well. That number is 844-337-6303.

*****
Rachel Demarest Gold and Sharon Stiller are partners at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP in New York. They can be reached at [email protected] and [email protected] respectively.